Human rights and rule of law: what's the relationship?

TABLE OF CONTENTS I. BOLSTERING THE SHAKY FOUNDATIONS OF THE HUMAN RIGHTS MOVEMENT: CONCEPTUAL ISSUES A. Rule of Law to the Rescue? The Contested Nature of Rule of Law B. The Inability of Rule of Law to Provide Effective Guidance on Specific Issues II. THE IMPLEMENTATION OF HUMAN RIGHTS AND THE PRACTICAL LIMITATIONS OF RULE OF LAW: EMPIRICAL ISSUES III. RULE OF LAW, ECONOMIC GROWTH AND HUMAN RIGHTS: THE LIMITS OF ALTRUISM AND OTHER OBSTACLES IV. RULE OF LAW, DEMOCRACY AND HUMAN RIGHTS: ALL GOOD THINGS NEED NOT GO TOGETHER V. RULE OF LAW AND WAR: AFTER 2000 YEARS NOT QUITE INTER ARMES, SILENT LEGES, BUT NOT MUCH BETTER A. Prevention of War B. Prevention or Mitigation of Abuses During War VI. RULE OF LAW, TRANSITIONAL JUSTICE, NATION BUILDING AND THE ESTABLISHMENT OF RIGHTS-RESPECTING REGIMES: THE LIMITS OF LAW, POLITICAL WILL AND KNOWLEDGE A. Competing Thick Conceptions of Rule of Law and Reconstruction Efforts: A Margin of Appreciation and the Limits of Tolerance B. Thin Rule of Law as the Basis for Reform in Failing and Developing States C. Challenges to the Establishment of Thin Rule of Law D. Rule of Law and Transitional Justice VII. RULE OF LAW AND TERRORISM VIII. AMERICAN EXCEPTIONALISM AND RULE OF LAW IX. CONCLUSION Rule of law in some form may be traced back to Aristotle and has been championed by Roman jurists; medieval natural law thinkers; Enlightenment philosophers such as Hobbes, Locke, Rousseau, Montesquieu and the American founders; German philosophers Kant, Hegel and the nineteenth century advocates of the rechtsstaat; and in this century such ideologically diverse figures as Hayek, Rawls, Scalia, Jiang Zemin and Lee Kuan Yew. (1) Until recently, however, the human rights movement paid relatively little attention to the relationship between rule of law and human rights. (2) The Universal Declaration of Human Rights mentions rule of law only in passing in the preamble, suggesting in typically cryptic fashion that "human rights should be protected by the rule of law." (3) Neither the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic, Social and Cultural Rights (ICESCR), the other two main pillars of the "international bill of rights," mentions rule of law. (4) Nor do most other early rights treaties, general assembly statements, committee reports or comments appeal to rule of law.

In contrast, references to rule of law now regularly appear in general assembly resolutions, committee reports, regional workshop platforms and other human rights instruments. (5) Rule of law is central to the European Convention and is one of the requirements to join the European Union. (6) The World Bank and the International Monetary Fund (IMF), limited by their charters from directly intervening in domestic political affairs, have emphasized rule of law and good governance. (7) In 2002, the late U.N. Human Rights Commissioner Sergio Vieira de Mello made rule of law the centerpiece of his brief tenure in office. (8)

This Article considers several explanations for the international human rights movement's sudden heightened attention to rule of law. The human rights movement has increasingly encountered conceptual, normative and political challenges. In particular, the movement's claim to universality has been shattered by critiques that take issue with the secular, individualistic, liberal commitments of the movement. (9) In contrast, rule of law appears to be widely accepted by people of different ideological persuasions. Christians, Buddhists and Muslims; libertarians, liberals and Confucian communitarians; democrats, soft authoritarians, even socialists and neo-Marxists (10) all find value in rule of law. Rule of law then may provide one way to shore up the shaky foundation of the human rights movement. Perhaps, as de Mello suggested, rule of law will be a "fruitful principle to guide us toward agreement and results," and "a touchstone for us in spreading the culture of human rights." (11)

Whatever the human rights movement's conceptual and normative shortcomings, the movement's biggest failure has been not making good on the promise of a better life enjoyed by all in accordance with the utopian ideals contained in the ever-swelling list of human rights. Despite the movement's successes, we still live in a world where widespread human rights violations are the norm rather than the exception. Rule of law is seen as directly integral to the implementation of rights. Without rule of law, rights remain lifeless paper promises rather than the reality for many throughout the world.

Rule of law may also be indirectly related to better rights protection in that rule of law is associated with economic development, democracy and political stability, which are key determinants in rights performance. A long line of economists, legal scholars and development agencies from Max Weber to Douglas North to the World Bank have argued that rule of law is necessary for sustained economic growth. Rule of law protects property rights and provides the necessary predictability and certainty to do business. With one-fourth of the world's population living below the international poverty line of $581 a year per capita, 790 million people lacking adequate nourishment, one billion living without safe water to drink, two billion suffering from inadequate sanitation and 880 million lacking access to basic healthcare, economic growth is essential to the alleviation of some of the worst human suffering. (12)

Rule of law is integral to and necessary for democracy and good governance. Attempts to democratize without a functional legal system in place have resulted in social disorder, as in Russia, East Timor, Haiti, Kosovo, Afghanistan and Iraq, and in the collapse of democratic regimes and their replacement by more authoritarian regimes in Indonesia in 1957, the Philippines in 1972, South Korea in the 1970s and numerous former Soviet republics. (13)

Rule of law is said to facilitate geopolitical stability and global peace. (14) According to some, it may help prevent wars from occurring in the first place. (15) It also provides guidelines for how war is carried out, limiting some of the worst atrocities associated with military conflicts. It offers the possibility of holding accountable those who commit acts of aggression and violate humanitarian laws of war, and it is central to the establishment of a fights-respecting post-conflict regime.

Post-9/11 concerns over terrorism have also focused attention on rule of law as a means to hold terrorists accountable and to legitimize their capture and punishment, often through the promulgation of national defense and anti-terrorist laws. (16) The war on terrorism has been characterized as a war on "our" way of life--on democracy, human rights and rule of law--and ergo on civilization itself. Kofi Annan claimed that the terrorist attacks on the United States "struck at everything [the United Nations] stands for; peace, freedom, tolerance, human rights[,] ... the very idea of a united human family[,] ... all our efforts to create a true international society, based on the rule of law." (17) Conversely, rule of law plays a crucial role in ensuring that civil liberties are not encroached upon in the zeal to crack down on suspected terrorists and has been invoked to protest, for instance, the so-called Patriot Act. (18)

In addition, the upsurge of U.S. unilateralism and American-style cultural relativism has challenged the universality of human rights, exposed the soft underbelly of the international order and its vulnerability to power politics and threatened to undermine the foundation of the international legal order upon which the edifice of international human rights rests. (19) Rule of law provides a rhetorical basis for challenging the world's sole reigning superpower. Indeed, Annan recently reiterated that the U.S.-led invasion of Iraq was illegal (20) and called on all nations, weak or strong, to abide by international law and uphold rule of law. (21)

Taking each of these factors in turn, I critically analyze the relationship between rule of law and human rights in order to address the following: To what extent are the high hopes for rule of law justified? What are the conceptual, normative and practical limits of rule of law? What are the main obstacles to implementation of rule of law domestically and internationally? What changes in the international order would be required to realize the possibilities of rule of law? Given such limitations, what can we really expect for and from rule of law? I suggest that we must be more pragmatic in our approach, and more modest in our aspirations, for rule of law and its role in facilitating the implementation of human rights. In the final Section, I draw a number of more specific lessons and conclusions about each of the uses for which rule of law has been put.

In the past, support for the human rights movement was relatively costless for states given doctrinal limitations in the corpus of international rights law; the relatively undeveloped state of multilateral, governmental and non-governmental institutions for monitoring human rights violations; and the weakness of enforcement mechanisms. In recent years, the human rights movement has become an increasingly powerful force capable of affecting governmental policies and actions to one degree or another in many, if not all, countries.

Not surprisingly, the international human rights regime has become the subject of more critical scrutiny as it has become more powerful. As a result, there is now a greater awareness of a number of conceptual, normative, political and practical weaknesses in the human rights framework. (22) Despite the considerable efforts of philosophers, the concept of a right remains notoriously contested and incoherent. (23) There is no...